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Welch v. United States

United States District Court, W.D. Tennessee, Eastern Division

January 6, 2015

FRANKIE WELCH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER DIRECTING CLERK TO MODIFY THE DOCKET, DENYING PETITION PURSUANT TO 28 U.S.C. § 2241, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

JAMES D. TODD, District Judge.

On October 27, 2014, Petitioner Frankie Welch, Bureau of Prisons register number XXXXX-XXX, an inmate at the Federal Correctional Institution Low in Butner, North Carolina ("FCI Butner Low"), filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1.) Petitioner paid the habeas filing fee on November 3, 2014. (ECF No. 4.) The Clerk shall record the Respondent as the Warden of FCI Butner Low.[1] For the reasons stated below, the § 2241 petition is DENIED.

On October 16, 2006, a federal grand jury in this district returned a single-count indictment charging that, on or about January 27, 2006, Welch possessed over fifty grams of cocaine base (crack cocaine) with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). ( United States v. Welch, No. 06-10076-JDT (W.D. Tenn.) (ECF No. 1).) On October 11, 2007, Welch entered a plea of guilty. ( Id., Min. Entry, ECF No. 35; id., Guilty Plea Hr'g Tr., ECF No. 51.) At a hearing on January 7, 2008, the Court sentenced Welch to a 292-month term of imprisonment, to be followed by a five-year period of supervised release. ( Id., Min. Entry, ECF No. 42; id., Sentencing Hr'g Tr., ECF No. 53.) Judgment was entered on January 7, 2008. ( Id., ECF No. 43.) The United States Court of Appeals for the Sixth Circuit affirmed. United States v. Welch, 324 F.App'x 448 (6th Cir. 2009).

On June 19, 2009, Welch filed a motion under 18 U.S.C. § 3582(c) in which he sought a reduction in his sentence pursuant to Amendments 706 and 709 to the U.S. Sentencing Guidelines. (No. 06-10076-JDT, ECF No. 58.) The Court denied the motion on July 6, 2009, on the ground that both amendments were already in effect when he was sentenced. ( Id., ECF No. 59.)

On July 8, 2011, and October 17, 2011, Welch filed additional motions under § 3582(c), seeking a reduction in his sentence as a result of the amendment of the Sentencing Guidelines after the enactment of the Fair Sentencing Act of 2010 ("FSA"), Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010). ( Id., ECF Nos. 63 & 66.) The Court denied the motions on March 13, 2012. ( Id., ECF No. 69.) The Sixth Circuit Court of Appeals affirmed. United States v. Welch, No. 12-5343 (6th Cir. Feb. 13, 2013).

On July 8, 2013, Welch filed yet another § 3582(c)(3) motion in which he continued to argue that he was entitled to a reduction of his sentence pursuant to the FSA. (No. 06-10076-JDT, ECF No. 73.) The Court denied the motion in an order issued on May 22, 2014. ( Id., ECF No. 77.)

On November 4, 2014, Welch filed a motion seeking a reduction in his sentence pursuant to Amendment 782 to the sentencing guidelines. ( Id., ECF No. 78.) That motion is pending.

On May 25, 2010, Welch filed a pro se motion pursuant to 28 U.S.C. § 2255, which was docketed as civil case number 10-1132-JDB-egb. Welch v. United States, No. 10-1132-JDB-egb (W.D. Tenn.). Welch alleged that his attorney had rendered ineffective assistance, in violation of the Sixth Amendment. ( Id., ECF No. 1.) Specifically, he complained that his attorney (i) "failed to object to the fact that the state laboratory test results did not show that petitioner possessed crack cocaine for the 100 to 1 ratio"; and (ii) failed to file a motion to dismiss the indictment because of a violation of the Speedy Trial Act. ( Id. at PageID 4.) In an order issued on October 19, 2010, United States District Judge J. Daniel Breen denied the § 2255 motion ( id., ECF No. 2); judgment was entered on October 21, 2010 ( id., ECF No. 3). Welch filed an appeal ( id., ECF No. 4), but the Court of Appeals subsequently granted Welch's motion to voluntarily dismiss the appeal. Welch v. United States, No. 10-6342 (6th Cir. Nov. 17, 2010).

On November 10, 2010, Welch Filed a second § 2255 motion, accompanied by a motion seeking leave to withdraw his guilty plea. ( Welch v. United States, No. 10-1293-JDT-egb (W.D. Tenn.) (ECF Nos. 1 & 2).) Welch claimed that (i) his guilty plea was involuntary because of a defective indictment; (ii) the allegedly warrantless search of his home and subsequent seizure violated the Fourth Amendment;[2] iii) the Court had no jurisdiction to take an involuntary guilty plea; and (iv) the defective indictment and involuntary plea represented a miscarriage of justice. In an order issued on January 4, 2011, the Court transferred the motion to the Sixth Circuit pursuant to In re Sims, 111 F.3d 45 (6th Cir. 1997). (No. 10-1293-JDT-egb, ECF No. 3.) The Court of Appeals denied leave to file a second § 2255 motion. In re Welch, No. 11-5029 (6th Cir. Sept. 30, 2011).

On October 21, 2011, Welch filed a third § 2255 motion, which was docketed as civil case number 11-1324-JDT-egb. Welch v. United States, No. 11-1324-JDT-egb (W.D. Tenn.) He claimed that (i) his guilty plea was not intelligent and voluntary because the Court failed to comply with the procedures in Federal Rule of Criminal Procedure 11; (ii) the failure of the indictment to specify the drug quantity to be used at sentencing constituted a miscarriage of justice; (iii) his lawyer rendered ineffective assistance by failing to advise him of his rights and the drug quantity to be used at sentencing; and (iv) he is actually innocent of the thirty-nine kilograms of cocaine base attributed to him at sentencing. ( Id., ECF No. 1). In an order issued on March 2, 2012, the Court administratively closed the case because the issues presented were raised in Welch's second § 2255 motion, which was still pending before the Court of Appeals. ( Id., ECF No. 3.)

On October 27, 2014, Welch filed the instant pro se § 2241 petition. (No. 14-1296-JDT-egb, ECF No. 1.) Welch seeks to challenge his sentence in light of Persaud v. United States, 134 S.Ct. 1023 (2014) and Alleyne v. United States, 133 S.Ct. 2151 (2013), and on various other grounds.

Federal prisoners may obtain habeas corpus relief pursuant to 28 U.S.C. § 2241 only under limited circumstances. The "savings clause" in § 2255 provides as follows:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that ...

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